Scott v. Uljanov ( 1988 )

Kane, J. P., and Levine, J.,

concur in part and dissent in part in a memorandum by Kane, J. P. Kane, J. P. (concurring in part and dissenting in part). We disagree only with the majority’s conclusion that plaintiff’s fourth cause of action presents a negligence claim and was, therefore, timely brought within the applicable three-year Statute of Limitations (see, CPLR 214). In our view, this cause of action sets forth a claim for medical malpractice and, thus, was time barred by the 21A-year Statute of Limitations set forth in CPLR 214-a.

Plaintiff’s fourth cause of action is based on a claim of inadequate supervision by UHS. Although the majority cites Zellar v Tompkins Community Hosp. (124 AD2d 287) for support, that case is inapposite. In Zellar, the plaintiff alleged a failure on the part of the defendant’s employees to timely respond to the plaintiff’s calls for assistance. As this court noted: "response time in a hospital speaks directly to the question of patient care, which in turn, bears a substantial relationship to a patient’s over-all medical treatment * * * Hospitals are duly charged to exercise reasonable care in safeguarding a patient, and whether a breach of that duty occurs necessitates a comparison to the standard of care customarily exercised by hospitals in the community * * *. Whether defendant’s employees deviated from this standard of due care cannot be determined without a full appreciation and understanding of the operational demands and practices of a medical facility. In effect, the question is one of malpractice” (supra, at 289 [emphasis supplied] [citations omitted]). The plaintiff in Zellar also made a claim of inadequate staffing, and it was that claim that this court determined to be one sounding in negligence. Here, in our view, plaintiffs claim of inadequate supervision is analogous to the claim made in Zellar of a failure to timely respond and is not the same as a claim of inadequate staffing. Thus, the claim in this case of inadequate supervision falls within the ambit of medical malpractice and not simply negligence. Accordingly, we would affirm Supreme Court’s decision in its entirety.